While there are a number of definitions of “emotional intelligence,” and no small amount of controversy in the scientific community about the validity of a number of them, Kelly and Kaminiskiené cite one definition and one model that are both critical in every negotiation. The definition is from Bowling & Hoffman (2000) Bringing Peace into the Room: The Personal Qualities of the Mediator and Their Impact on the Mediation. Bowling and Hoffman define emotional intelligence as “the capacity for recognizing our own feelings and those of others, for motivating ourselves, and for managing emotions well in ourselves and in our relationships.” And the four elements of the model from Bradberry & Greaves, 2009 Emotional Intelligence are these: self-awareness, self-management, social awareness and relationship management.

So let’s think about why this is important from the standpoint of both an attorney /advocate during the negotiation process and from that of a mediator. We'll do that right after the jump.

From both standpoints, let’s think about how individual parties to litigation feel about the process even when they are not involved in mediation, or much of anything else to do with the case. Typically, lawyers who represent individuals will have many pending cases, and only be contacting individual clients, or getting them involved in some way, on occasion. Nevertheless, many party litigants feel as though they are involved in their cases on a full-time basis: “I don’t have time for that, I’m too busy with my law case.” Even though they just get involved from time to time, the emotional impact of being in litigation can make it feel like a fulltime, all-consuming effort.

Now let’s take that same litigant to a traditional court settlement conference. The litigant and his lawyer show up at the assigned courtroom. So do the lawyers on the other side, and maybe some insurance claims representatives or in-house counsel. The settlement judge announces “I want to see the lawyers and the claims representatives in my chambers,” and our fulltime litigant gets to sit outside the courtroom, or in one of the spectator seats (where there is nothing to spectate, because all the action is in chambers). After meeting with the professionals on both sides, the judge then takes each side at a time, browbeating them into reaching an agreement which our litigator then says he will take to his client. This results in a settlement, and whether it’s a good settlement or a bad one, the client goes home thinking the lawyers and the judge cut a deal behind his back. Nothing relieves the emotionally wrenching experience of the litigation.

Why should a mediation be both different and better than this? The successful mediator should recognize that parties on both sides are likely to have a high level of emotional involvement in the dispute. Certainly individual parties will, but it is not unusual for insurance or corporate representatives to become emotionally involved in their positions as well – the latter emotions are just harder to see. And a competent mediator should be watching for these things:

How are emotions driving each party’s position?

How are emotions getting in the way of what seems like a logical, rational, mutual decision?

To what extent can and should the mediator help the parties “let it all hang out” – expressing as much as possible about how they feel, effectively giving them their day in court while not escalating the dispute to a point that becomes destructive.

And what can the mediator do to relieve emotional pressure and steer the parties toward a resolution that is in both of their best interests?

It is just about always helpful to have the parties tell their entire stories, and tell more, and then tell more still, while everyone is in the room. The mediator should not be too quick to go into “shuttle diplomacy” mode. As mentioned above, for many litigants this really will be their “day in court,” and it is very valuable to let them express all of their views both factually and emotionally, possibly more than they could if it were a real “day in court.” Then, when private caucuses finally start, clear signs of listening and empathy are also important. And after that, it’s time to ask questions about what route to the end of the dispute will ultimately be in the party’s best interest, as the mediator tries to steer both sides into a jointly arrived at end to the process.

Lawyer / advocates need emotional intelligence as well. Many years ago, during mediation, CBL had a client privately tell him “I don’t care about the money – I want the other side to go to jail.” For decades after, CBL would tell clients at the beginning he was going to do a great job for them, but when all was said and done, all the litigation process could do was move money from one side to the other. Then, he’d pull a reminder of this out before the settlement conference or mediation process started, make sure the client knew how much he sympathized and empathized, but remind the client that this could only be about money. Openly sympathizing, and subtly empathizing, are sufficiently important and valuable that this seems to have worked well over the years also.